CANADA—.DECLARATORY AND INDEMNITY BILL.

HC Deb 15 August 1838 vol 44 cc1296-310

Lord John Russell

moved the Order of the Day for the third reading of the Canada Government Declaratory and Indemnity Bill.

Mr. Leader

hoped before the bill was read a third time, that the House would allow him to say a few words with respect to certain misrepresentations which had appeared in the newspapers of that morning; and also to ask what were the intentions of the noble Lord with respect to the twenty-three unfortunate men who were proscribed under the ordinance of Lord Durham. The hon. Member for Lambeth (Mr. Hawes), in the newspapers of that morning, was made to charge him with a breach of friendship, and he believed also with a breach of confidence, in what he had said respecting Mr. Charles Buller. As to any breach of friendship, his acquaintance with Mr. Buller commenced on political grounds, and when at last they unfortunately differed on many political questions, it almost entirely ceased. However, if he had been on the most intimate terms of private friendship with Mr. Buller, he confessed that, in his opinion, private friendship ought to yield in every instance to public duty. In that House almost every Member was in the habit of calling every other Member his noble or hon. Friend, and it certainly was amusing sometimes to hear the language of these noble and hon. Friends to one another. He confessed that he had not so light or loose a notion of friendship as to be able to treat it in that manner. As to any breach of confidence, he was sure the hon. Member for Lambeth had no intention to attribute that to him, and no one who knew him would do so. The real fact was, that if any breach of confidence had been committed, it was committed by the person who sent the letter of Mr. Buller, or rather extracts from it, The Morning Chronicle, rather than by him. In the absence of any official information from the Government, he was compelled to take the best information he could from any quarter, and that extract from a letter in the Government paper The Morning Chronicle, seemed to him to be the most official document he could come at. There was also another misstatement in the papers, no doubt unintentional, with respect to what he (Mr. Leader) said as to Mr. Buller's intercourse with Mr. Thom, the bloodthirsty (he could not use any other expression) editor of The Montreal Herald, who advised that Papineau should be assassinated. Now, the papers made him state, that Mr. Buller was in constant communication with this man. He really said no such thing. He knew not whether they were in communication or not. All that he did was to read an extract from The Montreal Herald, stating on the part of the editor, that he bad had a conversation with Mr. Buller, and was in communication with him. Of the fact he knew nothing whatever. There was another in-correctness in the statement of the hon. Member for Lambeth as to the state of Lower Canada at this moment. He said, that he had had a conversation with many of the Canada merchants in London, and that was the description they gave of it. Now, he would give the hon. Member one fact, which alone was of much more value than the assertion of these merchants, In former years there had been as many as 14,000 or 15,000 emigrants into Upper and Lower Canada, whilst in the last year there were but 1,200. In short, the accounts he had received of the state of the province were, that distrust, discontent, and great distress existed there. These were the inevitable consequences of an unsuccessful insurrection, and he was heartily sorry for it. Another hon. Member had asserted that he had charged Lord Durham with being cruel and inhuman. He said no such thing; but he had stated, that the effect of Lord Durham's ordinances was to perpetrate cruelty and inhumanity. The hon. and learned Member, the Attorney-general, had asserted, that he had committed a great blunder in confounding legislative and executive Acts. He had done no such thing; but he had asserted, that irregular acts had been committed. It would have been well for the Ministers—it would have been well for the Attorney-general—it would have been well for Lord Durham, and, still more, it would have been very well for the country, if the Attorney-general had had a little conversation with the noble Earl before he left this country, and explained to him the difference between legislative and executive acts. He believed he had answered all the mis-statements, and he now begged to ask the noble Lord what his intentions were relative to the twenty-three unfortunate men who had been proscribed by these ordinances, the eight who had been sent to the Bermudas, and the fifteen who were condemned to death if they returned to the colony. After what had passed, it was impossible that the Government could presume to try these men by a jury, because it had been distinctly stated by the hon. Gentleman op-posit; that such a mode of trial would in point of fact, amount to nothing more nor less than a judicial murder. It had been distinctly declared, that it would be an act of the grossest injustice and cruelty to attempt to try them by a tribunal of this kind. It would be equally bad to punish them without trial. What, then, did the Government intend to do with them? He thought that, under all the circumstances, the best thing that could be done, would be to leave them unmolested; for this reason, that the Government must be weak indeed, if it could be overturned by the efforts of twenty-three private individuals.

Mr. Hawes

did not impute to the hon. Member any breach of confidence, but he had alluded to what he considered the bad taste of using quotations of letters, without being signed or in any other way authenticated in that House, and he retained the same opinion still. He had had an opportunity of seeing some of the first firms in the city of London that day, and he was happy to say, every word of what had fallen from him as to the state of Lower Canada was fully borne out. There was but one opinion amongst the whole of the merchants engaged in that trade as to the policy of Lord Durham—they thought it was the wisest that could have been pursued. Widely different was their opinion with respect to the recent discussions upon the subject—they thought that the annulling of these ordinances and the interference with the authority of Lord Durham, was almost calculated to risk a second rebellion. They regretted also, that the noble Lord at the head of the Government had not shown upon this subject the same spirit as the noble Lord the leader of the Government in this House.

Lord J. Russell

, as to the question with which the hon. Member for Westminster concluded, about the twenty-three persons affected by the ordinance, begged to decline giving any answer.

Order of the day read. On the question that the bill be now read a third time,

Dr. Lushington

was anxious, before the bill passed into a law, to express in a few words the opinions which he entertained with respect to it. If it depended upon his sole vote it never should pass into a law at all, and his reason would shortly be, that he was not in the least degree satisfied, after all the discussiont hat had taken place on both sides of the House, that there had been any violation of the law. He had heard some of the debates in another place, and last night he had listened most attentively to the speech of the hon. and learned Member for Exeter, and he could not but remark that he spoke with extreme caution: he carefully avoided giving expression to any opinion by which he might be bound hereafter, whatever course he might be called upon to take. He did not lay down in what particular this measure was a violation of the law. If there were any man in the House (and he was speaking in the presence of the hon. and learned Gentleman) who, if he had formed a clear and decided opinion that this measure was a violation of the laws of the land, would and could have stated its illegality in terms impossible to be misunderstood, that man was the hon. and learned Member for Exeter. The hon. and learned Member's hesitation made him (Dr. Lushington) doubt, and that doubt would have made him ponder and consider well before he would venture to come to a conclusion upon such a discussion as he had heard there or elsewhere, that there had been a violation of the law. But when he considered the discordant opinions that had been expressed—when he found the hon. Baronet the Member for Tynemouth (Sir Charles Grey), perfectly conversant with the whole of the affairs of Canada, having the Acts of Parliament at his fingers' ends, quoting chapter and verse, pronouncing that to be legal which the bill pronounced to be illegal, and declaring in his opinion the power of transportation to the Bermudas did exist—then he wanted to know whether it was not his duty to hesitate before he pronounced a clear and decided opinion. Again, when he looked to the other part of the question relating to persons not in custody, there was the same discrepancy of opinion. But suppose he did not entertain a doubt upon the subject, was he, therefore, to vote for a bill of indemnity? Never—never. He could well remember the day and the hour when the Habeas Corpus Act was suspended, there was no bill of indemnity then. He deemed bills of indemnity at that time, and he deemed them now (and in this he agreed with the learned Lord Chief Justice) a violation of the liberties and the rights of the people. If a man suffered from a violation of the law he ought to have his remedy. Had he forgotten the day when men who wished to be put on their trial were incarcerated from year to year, and afterwards, when the suspension of the Habeas Corpus Act was at an end, were deprived of the right of asserting their innocence, and of being indemnified for the loss to which they had been wickedly subjected? Never would he depart from these principles. Rather would he have it said, that action upon action had been brought against all concerned, whatever might be the amount of the loss resulting from such a course of proceeding. If that loss were incurred for the general safety and security of the people, it was the duty of the people to bear the burden of it. But he agreed with his hon. and learned Friend the Attorney-general, that in this case it was the mere transient image of a loss; and that no jury, looking to the circumstances of the case, would view it otherwise than an act of mercy to the parties. One word more as to the Earl of Durham:—If he had erred in his apprehensions of the law, whose fault was that? If the Earl of Durham had no clear notion of the law, who ought to have? The Lord Chief Justice of England? The Lord High Chancellor? a noble and learned ex-Chancellor? the learned Gentleman the Member for Exeter? or the hon. Baronet the Member for Tyne-mouth (Sir C. Grey)? Amidst the conflicting opinions of all the legal authorities, was Lord Durham to be blamed for ignorance of the law? Seeing how much these high authorities differed upon the subject, he doubted whether, if Lord Durham had been attended by a legal adviser, he would ever have found the right way at all. If Lord Durham were ignorant of the law, was the blame to rest upon his shoulders? Not at all. If Lord Durham were ignorant upon this point, it was evident that his ignorance was shared by the great body of legal authorities in this kingdom. Then, as to the unconstitutionality of Lord Durham's proceedings. What was it that he was accused of? Was it want of mercy? Was it want of consideration for the lives of the people? He approved not of the form of these ordinances. But he looked to their essence—their substance—he knew nothing of the circumstances which rendered them necessary—he knew not what justified them, and he knew there must be strong cause to justify them; but he believed that Lord Durham would not exercise the full force of his authority without sufficient reason, He knew Lord Durham well—he knew (though doubtless he had his faults) that he had great talent, that he possessed high courage, the nicest sense of honour, and the highest intellect. One thing he honestly hoped, that, notwithstanding all the attempts which had been made there and elsewhere to discourage and discomfort Lord Durham's government, to weaken his power, and lessen his moral influence, to deprive him of the means of conferring the great blessing of peace upon Canada—notwithstanding those attempts, he hoped that Lord Durham, knowing and feeling the great duties with which he was intrusted, would rise superior to the provocations he had had, and encounter and deprive his enemies of that which would be a victory to them, but a misfortune to the country, as well as a diminution of his fame and honour, by continuing at his post and persevering in his endeavours to give to the distracted colony that peace and security which he, with his known love of liberty and attachment to the principles of freedom, was better calculated to effect than any other man in her Majesty's dominions. These were shortly his sentiments. He wished it to be remembered that he did not defend the form of this ordinance. But in the case of a colony just emerging from rebellion, and where it was impossible to follow the ordinary course of justice without perpetrating injustice—where, in observing the forms of justice, they would be doing nothing but injustice—in such a case he could understand that for peaceful and national and sound purposes Lord Durham might have had recourse to such a measure as that which they were discussing. The last observation which he had to make was this: that his jealousy was always excited when he saw a government of any kind first exerting the powers which properly belonged to it, to the utmost extent and severity which the law allowed, and then either exceeding the powers of the law or calling for further powers to increase the severity. But when he saw that the Earl of Durham had not, to his knowledge or belief, shed one single drop of blood—while he saw a reasonable prospect that the pacification of Lower Canada would be effected in a manner which he deemed most desirable, namely, without shedding one single drop of human blood—and while he thought that that one consideration surpassed all other considerations, whether as preventing more of human suffering or as supporting for ever after the cause of human happiness—while he saw that the prevailing sentiment of Lord Durham's Government was to allay those feelings of irritation, indignation, and revenge, which, if allowed to exist, might tend thereafter to disturb the peace of the colony—while he saw these things, then his belief was, that the Earl of Durham, rising superior to all those impediments that had been thrown in his way, and relying solely on his native integrity—and there did not exist a more straightforward or honest man in the kingdom—would still be the saviour and protector of that colony.

Mr. A. Sanford

was opposed to the bill, and said that instead of giving it his assent, he should give it his strongest and most public reprobation. He conceived it to be impolitic, unjust, and unnecessary, and that it was fraught with the most mischievous consequences; for if this bill should pass it would be impossible to oppose a similar measure on any future occasion, however tyrannically those might have acted to whom great powers had been given.

Lord Ebrington

agreed with his hon. and learned Friend the Member for the Tower Hamlets in all that he had said upon this occasion, and particularly with respect to the conduct of Lord Durham, with whom he had enjoyed a long acquaintance, and who was as incapable as any man in that House, of deviating from that course which his attachment to the principles of liberty would always point out to him. He never had occasion to give a vote with such pain as he should give his vote on the present occasion. But, after all he had heard on the subject, and particularly after the speech of his noble Friend (Lord John Russell), and the admissions made in the course of that speech, he could not feel justified on the whole, in refusing his assent to the bill, although he deeply and fervently deplored, that the question had ever been brought forward. Those who had brought it forward had, in his opinion, incurred a deep and heavy responsibility for the mischief which its discussion must, in his view of the subject, bring upon the colony itself, and also with respect to its connection with this country. His noble Friend (Lord J. Russell) had shown no disposition to shrink from his duty in supporting Lord Durham, and in sharing with him whatever responsibility might belong to the course which had been taken; and in consequence of the reasons which had been urged by the Government for adopting this measure he could not bring himself to refuse his assent to it. He would humbly suggest to his hon. Friend who differed from him and the noble Lord on this subject, that it would, perhaps, tend more to weaken the authority of Lord Durham and add to the embarrassment, as well of the Government as of Lord Durham himself, if, under all the circumstances of the case, a division should be taken and a difference of opinion be shown among those who sincerely wished well to both parties, privately and publicly, upon this question.

Sir Edward Codrinyton

was so strongly opposed to the bill, that notwithstanding the reasons that had been urged against coming to a division upon it, if any hon. Member would move its rejection he would give him his support.

Lord John Russell

must request his hon. and gallant Friend not to give his vote against this bill. His own opinion certainly was, that it would have been far better to have reserved the whole subject until they knew the circumstances under which the Earl of Durham had acted. He thought it was hardly fair or just towards the Earl of Durham to bring in this bill at the time it was introduced. But after the bill had been read a second time in the House of Lords—to which this subject more properly belonged than to the House of Commons, the Lords being peculiarly concerned with questions of a judicial nature; and after the opinion expressed by his hon. and learned Friend the Attorney-general, that there was a part of the ordinance which could not be justified by law; after this he thought it would be very much worse for Lord Durham and those acting under his ordinance if this bill were now rejected than if it were passed into a law. Such being the case, much as he lamented the agitation of this question, and that this bill should ever have been framed, yet the bill having come down to the House, he thought the best course that could be adopted for all parties concerned was to pass the bill, although he, at the same time, retained the opinion expressed by others, that it was certainly a premature expression of opinion on the part of Parliament.

Mr. Aglionby

, and those of his Friends who generally gave their support to the Government, but who belonged to no particular party, were on the present occasion placed in rather an awkward dilemma. It appeared to him that the very arguments which the noble Lord had addressed to the House to induce them to pass this bill were arguments that ought to incline them to reject it. The noble Lord had observed, too, that this bill came from the House of Lords, who were better qualified to deal with questions of this nature than the House of Commons: but that he distinctly denied. One reason that operated with him in his aversion to the measure was, that the House was called upon at the close of the Session to pass a censure upon Lord Durham, without having the opportunity to ascertain whether that censure was just or not. Objecting as he did to bills of indemnity altogether, and believing that Lord Durham had acted with the best intentions for the benefit of the colony, he thought that the better course, both towards him and the colony itself, would be to throw out the bill.

Sir George Grey

said, that in reference to one of the observations which had just fallen from his hon. Friend, he wished to state, that while he deeply regretted that this bill should have been introduced into Parliament, and while he most reluctantly, under the circumstances, gave to it his assent, yet he would not even now give it his support if he could conceive, with his hon. Friend, that it would imply the slightest charge against Lord Durham. Lord Durham had been wholly absolved—at least by the House of Commons, as was clear from the debate of this night—from anything approaching to criminality. The utmost extent to which he was charged with having acted illegally was, that in exercising having powers he had overlooked the territorial limits of Lower Canada. It was on that narrow ground only that it was alleged there had been an excess of authority exercised by him. While speaking of the conduct of Lord Durham, there was one point which appeared to have been lost sight of; at all events it had not been sufficiently dwelt upon; namely that there were three classes of persons dealt with by this ordinance. The cases of two of those classes had been repeatedly brought under discussion; but the case of the third class—namely those to whom complete amnesty had been granted by Lord Durham—had been over- looked. Now, it was a fact that that class consisted of between 300 and 400 persons, who had been apprehended and confined in the gaols of Montreal. This ordinance released all those persons and sent them to their homes. The second class were those eight individuals who, having confessed their guilt had been banished for four years; while the third class, consisting of fifteen persons, and who had already absconded from the colony, and who were known to have been the ringleaders in the insurrection, were forbade to return to the colony on pain of death; and this was an Act characterised as one of the greatest severity and cruelty. He could only say, that the noble Earl who was supposed to be principally affected by such a charge might well bear it; and he hoped that no charge might ever be brought against that noble Lord upon grounds more consistent with truth and justice.

Mr. Easthope

had heard with profound grief that they were to be entangled in the meshes of this paltry legislation—pitiful in its intention and in its origin, God send it might not prove most mischievous in its results. He most firmly believed, that there prevailed throughout the country one feeling of reprobation in respect of this miserable effort to do mischief. However calamitous the results might be, there would exist in the minds of the people no difficulty in tracing them to their source. He was sorry that there should be any impediment or obstruction in the way of their expressing their scorn for this despicable measure; but he felt bound to defer to the opinion which had been so generally expressed by the House as to the mode of dealing with the bill, for sorry should he be to add to the embarrassment which already existed with regard to this question; and as it was considered that it might increase that embarrassment if the House were on this occasion to be driven to a division, he should most reluctantly waive the opposition which he had fully intended to make to its further progress. It would be presumptuous on his part if were to attempt to go into the legal questions that had already occupied so much of the time of the House, and it was unnecessary for him to do so, but he should have been negligent of his public duty if he had not entered his protest against the measure, and had not expressed his concurrence in that general condemnation which he firmly believed was felt towards it by a vast majority of the country. Whatever evil consequences might result from it would be attributable to the quarter where it had originated. He had, however, no fear of one result, which might perhaps have been contemplated. He had no apprehension, that the Earl of Durham would lose sight of the cause of his country, of the cause of humanity, or of the cause of good government. He believed, that that noble Lord was too steadily bent on pursuing the path of duty which his patriotism pointed out to him, that he understood his course too well to be driven, or for a moment diverted from it, either by insult or any such ill-treatment. He believed, that Lord Durham would still pursue that course; and he ardently and sincerely hoped, nay, he confidently believed, that the ultimate result of the noble Earl's mission would be one which would reflect honour upon himself, and be attended with the greatest advantage to his country. But with respect to the bill then before them, so strongly was he opposed to it, that if there were any chance of success on his moving that it be read a third time this day three months, and that without causing embarrassment, he should most cheer fully have taken that course; but he felt, under all the circumstances, that such a step was not open to him, and he should, therefore, refrain from taking it, but he did so with the most sincere and unfeigned regret.

Mr. Grote

wished to say a few words before the bill passed, principally because he was one of the inconsiderable minority on the passing of the Act for providing a temporary government for Lower Canada, and from which bill he conceived the whole of the recent proceedings to have arisen. By that Act, the Imperial Parliament vested in the Governor and Special Council, powers that were unknown to the constitution; and the consequence had been—and not unnaturally so—that the extent of passed whilst any doubt existed of their those powers had been misconstrued by the individuals upon whom they were conferred. He could not help feeling satisfaction that he had not been seduced by personal respect to the Earl of Durham into a concurrence in a measure which, he must say, deserved the strongest epithets which had been applied to it, when it was under discussion in that House. He still much feared, that it would be found, that the House had gone the wrong way to work to obtain a settlement of the discontent- ment which existed in this country; and certainly when he followed the course of the debate on this measure, and contrasted the encomiums which had been passed upon Lord Durham by hon. Gentlemen with the conduct of the same Gentlemen who were saying by this bill, that he had exercised his power illegally, he found great difficulty in reconciling their con duct. If the noble Lord deserved the encomiums, then certainly this bill was not necessary; and if he had been guilty of illegal acts, then the encomiums could not be right. How they would get out of the difficulties in which they were placed he did not know. He was sensible, however, that as there was to be no division, there was no use in prolonging a debate which was to end in nothing; but he reflected with increased satisfaction at the opposition which he had given to the bill for providing for the temporary Government of Lower Canada, out of which he believed the necessity for the present bill had arisen, a bill which had thrown doubt on the proceedings of Lord Durham, and would probably cause loss of the moral influence of Government in that colony.

Colonel Sibthorp

regretted, that they had placed the Earl of Durham in a difficult situation by the contrary opinions which had been given; for the noble Lord, between two seats, would catch a fall. He thought, that the Government had done that which reflected little credit on them selves and was unworthy of the character of the noble Earl.

Mr. Finch

said, that the hon. Members who had preceded him, and who objected to this bill, seemed inclined to content themselves with merely entering their protest against it, but this course was not one which met entirely with his sanction. He was strongly opposed on principle to all acts of indemnity, and he was clearly of opinion, that they ought not to be hastily necessity. In the present case the conflicting opinions which had been delivered by eminent lawyers showed, that there was much doubt, and he should therefore certainly move that the third reading of this bill should be postponed to that day week. They were also at present in a state of uncertainty as to the circum stances which led Lord Durham to adopt the ordinance, and they ought not, without full knowledge, to be called upon to sanction so delicate a mea- sure as an act of indemnity. In another week a packet would probably have arrived and they would then be able to learn the real state of the case. The arguments of his hon. and learned Friend near him (Dr. Lushington), appeared to him to be convincing, and the hon. and learned Member for Exeter had left the House without attempting to answer any of those arguments. It was necessary that the Friends of Lord Durham should express their opinions, and, as the gallant colonel opposite wished to discover who were the real friends of that noble Lord, he would give the country an opportunity of knowing them: he would move that the bill he read a third time that day week.

The Attorney-General

most exceedingly regretted that the hon. Gentleman should persist in a motion for dividing the House, and he thought that the hon. Gentleman would have done better to have followed the course adopted by other Members of great experience in that House, and of high station in the country, who, though objecting to the bill, had thought it more expedient not to press a division. To the hon. Member who had seconded the motion, of whom he entertained the highest opinion, and whom he had known for years, he would also appeal, and ask him whether, under the circumstances of the case, it was expedient to take the step? Hon. Members might or might not be satisfied of the legality of the ordinance, still, after the opinions which had been expressed by himself and his learned. Friend the Solicitor-general, that part of the ordinance was illegal, although this might be wrong, it would be better to pass the bill. No opinion to the contrary had been given, and he believed that the hon. Member for Tynemouth merely contended that it was only a small departure from the letter of the law, like the lady who, being accused of having had an illegitimate child, said, by way of excuse, "It was true I have had a child, but then it was only a little one." Why, these opinions would encourage the bringing of actions, and the very bringing of actions would expose the parties who had acted under the ordinance to expense and vexation and mortification. He agreed that if this bill could have been avoided it would have been infinitely better, and if no motion had been made no action would have been thought of; but now, if they did not pass this bill the parties would be liable to pettifogging actions. The present bill was as objectionable to him as it was to the hon. Gentleman, but still he hoped he would yield to what was evidently the strong sense of the House.

Mr. Hutton

said, that the bill was not asked for by Lord Durham: and his strong feeling was, that it ought not to be passed, although, after the way in which the question had been put by Ministers, he could not see well how the House could absolutely refuse it. He trusted, therefore, that his hon. Friend with whom he usually acted would comply with the strong wishes of the Government, and not divide the House, although if he did press his amendment his own conviction was, that the bill was not proper.

Mr. Hawes

Although he had last night said that if a motion were made he would divide against it, yet, looking at the state of the House, and seeing how many of their friends were absent, a division might embarrass the Government; and as he thought that his hon. Friend's object had been attained by showing his great dislike to the measure he might withdraw his motion.

Mr. Finch

in accordance with the opinion of his Friends would yield to their wishes, and would not divide the House.

Bill read a third time and passed.